Reasonable Accommodations for Disabilities under the Fair Housing Act
Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act, prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, because of race, color, religion, sex, familial status, national origin, and disability. 42 U.S.C. §§ 3601–19.
This article discusses the Fair Housing Act’s prohibition on discrimination of persons with disabilities and the law’s applicability to homeowners and condominium associations.
An individual with a disability is someone with a physical or mental impairment that substantially limits one or more major life activities. The Fair Housing Act applies, but is not limited to, individuals, corporations, associations and others involved in the provision of housing, including property owners, housing managers, and homeowners or condominium associations (“HOA”).
The Fair Housing Act makes it unlawful to refuse to make reasonable accommodations to rules, policies, practices, or services when such accommodations may be necessary to afford persons with disabilities an equal opportunity to use and enjoy a dwelling and public and common use areas. See 24 C.F.R. § 100.204(a) (“It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas.”).
Additionally, the Fair Housing Act prohibits the refusal to permit, at the expense of the person with a disability, reasonable structural modifications of existing premises occupied by the person with the disability if such modifications may be necessary to afford full enjoyment of the premises and common use areas. See 24 C.F.R. § 100.203(a) (“It shall be unlawful for any person to refuse to permit, at the expense of a handicapped person, reasonable modifications of existing premises, occupied or to be occupied by a handicapped person, if the proposed modifications may be necessary to afford the handicapped person full enjoyment of the premises of a dwelling.”).
In order to prevail on a Fair Housing Act reasonable accommodation claim, a plaintiff must establish that (1) he is disabled within the meaning of the Fair Housing Act, (2) he requested a reasonable accommodation, (3) such accommodation was necessary to afford him an equal opportunity to use and enjoy the dwelling, and (4) defendants refused to make the requested accommodation. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1218 (11th Cir. 2008). A “reasonable accommodation” has been held to mean “a moderate adjustment to a challenged [HOA] policy, not a fundamental change in the policy.” Davis v. Echo Valley Condominium Assn., 945 F.3d 483, 490 (6th Cir. 2019).
To demonstrate that the requested accommodation is necessary the disabled person must show that the desired accommodation will ameliorate the effects of the disability. Essling’s Homes Plus, Inc., a Minn. Corp. v. City of St. Paul, a Minn. Corp., 356 F. Supp. 2d 971, 980 (D. Minn. 2004). There must be a direct link between the requested accommodation and the equal opportunity to be provided to the handicapped person. In re Kenna Homes Co-op. Corp., 557 S.E.2d 787, 794 (2001).
Reasonable accommodations are meant to address needs, not the personal preferences of disabled persons. It is insufficient to show that a refused accommodation is simply convenient or desired; rather, it must be necessary. Bachman v. Swan Harbour Ass’n, 653 N.W.2d 415, 429 (2002). The Fair Housing Act only ensures that the handicapped person is provided an equal opportunity to use and enjoy a dwelling, not a better opportunity than members of the surrounding community. Schwarz v. City of Treasure Island, 544 F.3d 1201, 1226 (11th Cir. 2008).
It should be noted, liability may be established under the Fair Housing Act based on a practice’s discriminatory effect even if the practice was not motivated by a discriminatory intent. See 24 C.F.R. § 100.500 (“Liability may be established under the Fair Housing Act based on a practice’s discriminatory effect, as defined in paragraph (a) of this section, even if the practice was not motivated by a discriminatory intent.”). “A practice has a discriminatory effect where it actually or predictably results in a disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of … handicap ….” 24 C.F.R. § 100.500(a).
The Fair Housing Act also prohibits relation against any person in the exercise or enjoyment of any right granted or protected by the law. See 24 C.F.R. § 100.400(b) (“It shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of that person having exercised or enjoyed, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this part.”).
The Fair Housing Act allow courts to impose actual damages and injunctions on defendants found liable for discrimination in housing. 42 U.S.C. § 3613(c). This may include damages for humiliation and embarrassment suffered by the plaintiff. Secretary, U.S. Dept. of Housing & Urban Development, on Behalf of Herron v. Blackwell, 908 F.2d 864, 872 (11th Cir. 1990).
The Fair Housing Act makes attorney’s fees available to the “prevailing party.” 42 U.S.C. § 3613(c)(2). However, case law construing the Fair Housing Act only allows for fees to defendant in limited situations. 42 U.S.C. § 3613(c)(2). Prevailing defendants are only entitled to receive fees “upon a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation.” Bryant Woods Inn, Inc. v. Howard County, Md., 124 F.3d 597, 606 (4th Cir. 1997) (quotation omitted).